Oregon Advisory Opinions December 23, 1980: OAG 80-153 (December 23, 1980)

OAG 80-153.

ORS 334.263 provides a statutory levy limitation upon education service districts (ESD's). Subsection (1) permits the people of the ESD by vote to exceed or expand the limitation contained in subsections (1) and (2) of ORS 334.263. Oregon Laws 1979, ch 445, sec 2, requires, prior to fiscal year 1982-1983, every ESD operating under ORS 334.240 to 334.270 to develop a comprehensive plan to provide educational services and programs to local school districts. Subsection (1) of that section describes what the plan shall contain and how that plan is to be implemented among the local, common and union high school districts, the ESD and the Department of Education.

ORS 334.263(3) provides in part as follows:

"(3) Education service district programs provided pursuant to the plan developed under subsection (1) of section 2, chapter

445, Oregon Laws 1979, shall be developed and approved through the resolution process specified in ORS 334.175. If the tax levy authorized under subsection (1) of this section for an education service district is not sufficient to fund the programs approved under this section, considering other revenues and programs of that education service district, the education service district shall submit to the voters of the district the question of a tax levy in addition to the levy authorized under subsection (1) of this section necessary to balance the budget. . . ." (Emphasis added.)

The question arises because ORS 334.240 requires in part as follows:

"(2) The board of the education service district is authorized, not later than March 15 each year, to prepare and adopt a budget for its own expenses, including expenses for travel, for providing the board with professional and clerical assistance, and for such services, equipment and supplies as the board may require. The board's expenses may include amounts necessary to provide special services and facilities authorized by subsections (1) and (2) of ORS 334.175." (Emphasis added.)

We are informed that some ESD's are concerned that the March 15 deadline for adoption of a budget under ORS 334.240(2), includes a requirement that voter approval for the levy necessary to fund the budget also be obtained no later than March 15. This would require the levy to be submitted to the voters on the third Tuesday in February. This would in turn require the board to actually prepare and adopt the budget not by March 15, but at least 70 days before the third Tuesday in February (early in December) in order to comply with the statutory notice requirements for levy elections. See ORS 310.350.

But ORS 334.240(2) requires the ESD board to prepare and adopt the budget by March 15. It does not speak to the timing of any voter approval which may be necessary. The clearly correct analysis is that levy approval, if necessary, is not subject to the ORS 334.240(2) deadline. It is sufficient if the board prepares and approves the budget before the deadline; it may then obtain voter approval, if necessary, at a later election in conformance with ORS 310.330 to 310.395, relating to levy elections.

The March 15 deadline may not even be mandatory for board adoption of the budget. We believe rather that it is directory, since ORS 334.240(2) appears to be